P L D 1961 (W (PLP)

SHABIR AHMAD, J.‑Muhammad Zaffar (Mahzun), who is the proprietor of the Dally Karzar which .used to be published in Multan, made an application to the District Magistrate, Multan, for authentication of his declaration under section 12 of the Press and Publications Ordinance (XV of 1960). The application, which was made on the I st of January 1961, was rejected by the District Magistrate and intimation of the rejection was sent to Muhammad Zafar (Mahzun) by means of letter No. 8747‑M/H.C., dated the 8th of March 1961, a copy of which is Annexure A on the record of the present case. The order of rejection was to the effect that the authentication of the declaration of Muhammad Zafar (Mahzun) was refused under section 12 (2) (d) of the Press and Publications Ordinance.(XV of 1960). On receiving intimation of the rejection of his declaration, Muhammad Zafar (Mahzun) who had been publishing the newspaper Karzar since 1952, presented the present writ petition for issue of an appropriate writ for quashing the order of refusal to authenticate the declaration and for directing the District Magistrate, Multan, who was the respondent in this petition, to authenticate the declaration in respect of the Daily Karzar, Msltan. .This petition came up for a preliminary hearing before a Bench consisting of my brother S. A. Mahmood and myself, and as it had been averred in the petition that the District Magistrate, Maltan, had been satisfied with regard to the eligibility of the petitioner to get his declaration authenticated and the order of refusal to authenticate the declaration had been passed because the Press Branch of the Government of West Pakistan had consi dered the petitioner to be ineligible, notice was issued to. the respondent to show cause against the writ petition. Theorder admitting the petition to a hearing also mentioned that the counsel for Muhammad Zafar (Mahzun) (to be referred to hereinafter as the petitioner) had contended that the petitioner should have been given an opportunity to show to the District Magistrate that he was not ineligible for having his declaration authenticated.

2. The written statement put in on behalf of the respondent was to the effect that the District Magistrate, Multan, had at no stage considered the petitioner eligible for having his declaration authenticated and that the impugned order did not suffer from any such defect as would justify the issue of a writ.

3. Before dealing with the various contentions raised on behalf of the learned counsel for the parties, it appears necessary to give some idea of the law relating to newspapers. At the time when the petitioner had made his application to the District Magistrate, Multan, the law on the subject was contained in the Press and Publications Ordinance (XV of 1960) which had been promulgated by the President of Pakistan on the 26th of April 1960. Some amendments in this Ordinance of 1960 were made by Press and Publications (Amendment) Ordinance (LI1I of 1960). One of such amendments was in section 5 of Ordinance XV of 1960 which, after the amendment brought about by means of Ordinance LI II of 1960, reads as follows :‑ "

5. No newspaper shall be printed or published except in conformity with the provisions of this Part and unless there subsists an authenticated declaration in respect thereof : Provided that any newspaper in respect of which a declaration made and subscribed under section 5 of the Press and Registra tion of Books Act, 1867 (XXV of 1867), and authenticated under section 6 thereof continues in force under subsection (1‑A) of section 67 of this Ordinance may continue` to be printed or published up to the twenty‑eighth day of February 1961, without an authenticated declaration ; but no such newspaper shall be printed or published after that date unless an authenticated declaration in respect thereof subsists." Another provision of Ordinance XV of 1960, to which a reference will be made in the sequal, is section 12, which is in the following terms "12. (1) Subject to the provisions of subsection (2), each of the triplicate originals of every declaration made and subscribed under section 7 shall be authenticated by the signature and official seal of the District Magisrate before whom the said declaration is made. (2) The District Magistrate shall not authenticate the declara tion unless he is satisfied that‑ (a) the proprietor of the newspaper if he himself is not the printer or the publisher has authorised the making, of such declaration ; (b) the title of the newspaper proposed to be published is not the same as the title of any newspaper already being published in the same language at any place in the same Province, not being a newspaper of different periodicity published by the same publisher or another edition of the same newspaper published from another place ; (c) the printer or the publisher was not convicted of an offence involving moral turpitude within five years before the 'date of his making and subscribing a declaration under section 7 (d) the publisher has the financial resources required for regularly publishCg the newspaper ; . (e) the editor possesses reasonable educational qualifications or has had adequate training or experience in journalism ; and (f) the printer or publisher is a person baout whom the Government is satisfied, on the basis of information in its possession, that he is not likely to act in a manner prejudicial to the defence or external affairs or security of Pakistan." 4. if have already indicated that the authentication of the petitioner's declaration was refused under clause (d) of subsection (2) of section 12 of Ordinance HIV of 1960, which means that the District Magistrate was of the opinion that the petitioner had not the financial .resources required for regularly publishing the paper the declaration of which he wanted to be authenticated. As mentioned already it was alleged in the present petition that the District Magistrate had at one stage considered the petitioner eligible for having the declaration authenticated and that the im pugned order of the District Magistrate was passed under instructions from the Press Branch of the Government of West Pakistan. These assertions in the petition were denied in the written statement and after going through the relevant record of the Press Branch of the Government of West Pakistan, which con tained copies of letters sent by the Distrist Magistrate, Multan, with regard to the petitioner as well as other documents, I acts satisfied that the District Magistrate, Multan, had at no stage expressed the view that the petitioner was eligible for authentication of his declaration. In spite of the fact that he had been given access to the above‑mentioned record under direction of the Court, learned counsel for the petitioner could not point to any document in the record mentioned above which might contain even the slightest that the respondent had at any time believed the petitioner eligible for the authentication of his declaration. Faced with this situation, learned counsel for the petitioner urged that his instructions from his client were that the District Magis trate had expressed the view that the petitioner was eligible for grant of authentication of his declaration and that if the relevant records were sent for from the office of the District Magistrate, Multan, this assertion of the petitioner would, probably, be established. Whether or not the District Magistrate, Multan, had expressed the view he is alleged to have done is a question of fact for which evidence was required, and as it was the duty of the petitioner and his counsel to have such documents as were likely to support the assertions in the petition summoned by the Court, but no attempt was made to have such an order issued, I am not prepared to give the petitioner any further opportunity to establish an assertion of fact which has nothing to support it in the material on the record.

5. Mr. Mahmud Ali Qasuri, who argued the case for the petitioner with his usual thoroughness, contended that even if the District Magistrate had at no stage considered that the application of the petitioner with regard to the authentication of the petitioner's declaration merited acceptance, the impugned order was unsustainable for other reasons. The contention was that the law had given the District Magistrate the power to grant or refuse the authentication of the declaration, and as the authentication of the declaration had been refused because someone other than the District Magistrate was of the view that it should be refused, the order, though it may have been passed by the District Magistrate, would be invalid for the reason that that officer had not exercised his own discretion in the matter. The language employed in section 12 of Ordinance XV of 1960 makes it clear that the District Magistrate is to authenticate a declaration unless he is satisfied that the case falls within any of the provisions of that section. Referring to the language employed in subsection (1) of section 12, learned counsel for the petitioner contended that the intention of the law was that the authentication of a declaration was to be refused under any of the clauses (a) to (e) of subsec tion (2) of section 12 only if that clause was attracted and the subjective satisfaction alone of the District Magistrate had not been made the sole test for the determination of the question whether or not any of the clauses of subsection (2) of section 12 was attracted. The reply of the learned Advocate‑General to the contentions of learned counsel for the petitioner was that the decision of the questions mentioned in clauses (a) to (e) of sub section (2) of section 12 had been left entirely to the District Magistrate, and as the District Magistrate had pasted the impugn ed order, the fact that he had consulted the Press Branch of the Government of West Pakistan did not make tae order amount to one passed by an officer of that Branch and not by the District Magistrate. He added that though it was true that the respondent had made a reference to the Press Branch of the Government of West Pakistan concerning the application of the petitioner for authentication of his declaration and that the respondent had been informed by means of a letter sent by the Press Branch of the Government of West Pakistan that the application of the petitioner for authentication of his declaration should not be accepted, the impugned order was passed by the respondent who chose to accept the views of the Press Branch. The learned Advocate‑General went on to say that the matter had in any case to be referred by the respondent to the Provincial Government to find out whether clause (f) of subsection (2) of section 12 of Ordinance XV of 1960 had application and as under the law in force even before Ordinance XV of 1960 the publisher of every newspaper had to send some copies of it to the Press Branch that department was aware of a number of things about newspapers and the District Magistrate could not be said to have erred in law by consulting the Press Branch of the West Pakistan Government to which department the financial position of the petitioner, could not but be known as the petitioner had been the proprietor, printer and publisher of the Karzar,of Multan since 1952.

6. It appears to me that the contention of learned counsel for the petitioner that subsection (1) of section 12 of Ordinance XV of 1960 made it the duty of the District Magistrate to authenticate declarations with the result that subsection (2) of that section could become applicable only if the things mentioned in any of the six clauses of that subsection were definitely proved to exist is not wholly correct. The grounds on which authentication of a declara tion can be refused are given in subsection (2) of section 12, and the first five clauses of that subsection made the District Magis trate the sole Judge of the existence of facts mentioned in them if the intention had been that the District Magistrate had to make an inquiry in a particular form before acting under any of the first five clauses of subsection (2) of section 12 of Ordinance XV of 1960, the language employed in these clauses would not have been what it is. Subsections (1) and (2) of section,12 of Ordinance XV of 1960 are not as irreconciliable as learned counsel for the petitioner would have it held that they are. The only reasonable meaning of section 12, of Ordinance XV of 1960 is that the power to authenticate declarations is vested in the District Magistrate and no one else and that this power can be exercised only if sub section (2) is not applicable. Had the intention of the law‑giver been that authentication of declarations was the rule and its rejec tion would be justified only if it were definitely established that the things mentioned in subsection (2) of section 12 of Ordinance XV of 1960 were not established, it would have been made clear that the satisfaction of the District Magistrate contemplated by sub clauses (a) to (e) of subsection (2) had to be reasonable satisfac tion, but it has not been said in these clauses of subsection (2) that the District Magistrate had to be reasonably satisfied that any of these clauses was attracted. It follows, therefore, that if the District Magistrate refuses the authentication, of a declaration under subsection (2) on the ground that any one of its first five clauses applies, the burden of proving that while passing the order of rejection, the District Magistrate was not satisfied that the ground that is mentioned by him to exist actually existed is on the person who asserts this. It was contended b' learned counsel for the petitioner that as worded subsection (2) of section 12 of Ordinance XV of 1‑6i would make it appear that the powers of the District Magistrate to refuse authentication of a declaration were fully as extensive. If he chose to refuse authentication of a declaration on the ground that clause (c) of the subsection was applicable as they were if he chose to exercise his powers of refusal on the ground that any other of the first five clauses of the sub section was attracted and as clause (c) could apply only if there existed a conviction for an offence of the type mentioned in that clause and not by reason of a conviction for any other offence or where there is no conviction for an offence at all, it had to be inferred that the satisfaction of the District Magistrate could not have been meant to be his subjective satisfaction. No doubt the language employed could have been more precise and clear, but it does not follow that other clauses of subsection (2) of section 12 could be invoked by the District Magistrate only if the same degree of proof existed as is requisite in a case falling sander clause (c) of the subsection. The language employed makes it clear that the ground for refusing to authenticate a declaration under clause (c) of subsection (2) of section 12 of Ordinance XV of 1960 is the existence of certain facts which will almost invariably have documents to support them while by the other clauses except by clause (f) it has been left to the District Magistrate to refuse the authentication if he is satisfied that the things mentioned in those clauses exist. I am clear in my mind that the language used in clause (c) of subsection (2) of section 12 of Ordinance XV of 1960 does not mean that the other, clauses of the subsection except D clause (f ) in which clause the satisfaction mentioned is that o the Provincial Government, have to be applied only if something definite exists with regard to matters mentioned in those clauses.

7. It can hardly be doubted that in order to satisfy himself that the case of an applicant for authentication of declaration under section 5 of Ordinance XV of 1960 did not suffer from any of the defects mentioned in clauses (a) to (e) of subsection (2) of secdon.12 of Ordinance XV of 1960 a District Magistrate could make necessary inquiries. No provision 'of Ordinance XV of 1960 lays down the form of the inquiry which the District Magistrate could hold, and it would, therefore, appear that the inquiry that he may consider necessary to hold may take any form that he con siders appropriate in the circumstances of a particular case. In the present case, the respondent consulted the Press Branch of the Government of West Pakistan and this was evidently done to find out whether clause (f) of subsection (2) of section 12 of Ordinance XV of 1960 applied because the department must have a good deal of information about newspapers published in the Province on account of the fact that under one of the Acts repealed by Ordinance XV of 1960 a certain number of copies of each newspaper had to be sent to the Provincial Government just as has to be done under section 42 of that Ordinance. In n these circumstances, the contention of learned counsel for the petitioner that the reference by the respondent to the Press Branch of the Government of West Pakistan was entirely misconceived cannot be accepted In order to succeed, the petitioner had to a prove conclusively that the respondent had, when refusing the authentication of the declaration for which the petitioner had put in his application, not applied his own mind at all and had merely followed the instructions given to him by the Press Branch of the Government of West Pakistan. It is clear from the written state ment presented by the respondent that the views of the Press Branch of the Government of West Pakistan about the weak financial. position of the petitioner received support from the fact that the karzar had in .the past been published irregularly. The irregularity in the publication of the karzar was not denied by learned counsel for the petitioner but he urged that the circumstance did ' not prove that the case of the petitioner fell under clause (d) of subsection (2) of section 12 of Ordinance XV of 1910. It is possible that there may be same other explanation of this irregu larity in the publication of the‑karzar but the question for deter mination is whether it can be held that the District Magistrate acted without jurisdiction, or in excess of it, when he drew the inference from the irregular publication of the newspaper of the petitioner that the cause was the weak financial position of the petitioner who was the proprietor, printer and publisher of the paper. It can hardly be doubted that the answer to this question has, to be in the negative. It is inconceivable that a person who has so‑much stake in a newspaper as the petitioner has in the kada? would run the risk of losing customers on account of irregular publication of the paper, and, generally, the publication of a newspaper would become irregular only if there were some' very good causes for it, and one of these causes can be the weak financial position of the paper and its proprietor.

8. It was next contended by learned counsel for the petitioner that the District Magistrate should have given the petitioner an opportunity to show that his financial position was sound and that no order should have been passed to the prejudice of the petitioner without such opportunity being afforded to him. I do not consider it necessary to decide in‑ the present case whether or not the order of a District Magistrate passed under section 12 of G Ordinance XV of 1950 would become invalid if he refused authentication of a declaration without affording the applicant for it an opportunity to show that the things mentioned in clauses (a) to (e) of subsection (2) of that section did not exist, as in the present case the petitioner had sample opportunity to represent his case to the resident. It is admitted that the application of the petitioner for authentication of his declaration was supported by affidavits and, therefore, it was not a case of condemning a person without hearing him. It was open to the District Magistrate to accept or not to accept as correct the material produced by the petitioner in support of his assertion regarding the soundness of his financial position and if that officer did not accept the material produced by the petitioner as sufficient proof of his assertion regarding the soundness of his financial position, no occasion for issue of a writ by this Court arises. Some authorities were cited at the Bar by learned counsel for the petitioner to support his contention that the power to issue writs were wide, but I do not consider it necessary to refer to them because though they may be of great assistance when considering general principles of law, they have but very little value when one has to interpret a statute with which those authorities did not concern themselves as is the case with the decisions relied upon by learned counsel for the petitioner.

9. In view of what I have said above, I would dismiss the petition but, because of the peculiar circumstances of the case, would leave the parties to bear their own costs. H. T. RAYMOND, J.--‑I have had the advantage of reading the erudite judgment of my learned brother. I corisur and have nothiog material to add. A. H. Petition dismissed.